Five Points on the 14th Amendment and the Incorporation Doctrine

Since there have been many fallacies thrown around regarding the 14th Amendment in the last few days, I thought some clarifications were warranted:

1) Notwithstanding the views of those who contend that the 14th Amendment was not properly ratified (I share in the belief that it was not, along with several prominent American historians such as Forrest McDonald), the amendment did not grant the federal government an interventionist mechanism to police the states and usurp state authority for powers that were reserved to each state.

2) The 14th Amendment’s chief purpose was to affirm the new freedmen the same due process rights shared by their white counterparts, and to constitutionalize the 1866 Civil Rights Act.

3) Regarding “equal protection under the law” – if the right was not afforded to a white citizen in 1866, it wasn’t expected to be furnished to anyone according to the amendment’s advocates. In modern application, the prose has been used to justify a whole host of new “rights” that are usually privileges paid for by one class and distributed to others through governmental force. The notion that the 14th Amendment intended to bring about these privileges through 20th/21st century jurisprudential misapplication is demonstrably ludicrous.

4) The view that the 14th Amendment “incorporated” the federal bill of rights as limitations against the state governments does not withstand historical scrutiny – the federal courts did not even try to make this claim until more than 55 years after the 14th amendment’s ratification. The definitive narrative that articulates this position is Raoul Berger’s “Government by Judiciary.”

5) Most obviously, the 14th Amendment did not overturn or override the implicit principle, or the explicit verbiage codified in the 10th Amendment, that all powers that the states did not delegate to the federal government were reserved to the states or the people.

Dave Benner [website] speaks regularly in Minnesota on topics related to the United States Constitution, founding principles, and the early republic. He is a frequent guest speaker on local television and radio shows, and contributes writings to several local publications. Dave is the author of Compact of the Republic: The League of States and the Constitution. See his blog archive here and his article archive here.